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10 AL alee Me] 14 ales 16 ily/ 18 AES) 20 20 22 Ars 24 25 Case 1:15-cv-07433-LAP Document 1332-2 Filed 01/08/24 Page 19 of 42 18 XGAQGIUc SEALED conclusion," which is an exception to the Fifth Amendment. And the Greenfield case says there needs to be proof that the record is still in the control and possession of Mr. Epstein, otherwise, his producing it is an admission. This is my phone. I still have the record. This month's record shows a call with Ms. Maxwell. It's akin to testimony. They could not ask Mr. Epstein under oath "Did you communicate with Ms. Maxwell during the date and time that Ms. Giuffre says you and her were committing illegal acts?" Just like they can't get it by testimony, they can't get it through a subpoena request that requires as its predicate an admission that this is a call with Ms. Maxwell. The case cited even by the plaintiffs says, "The touchstone of whether an act of production is testimonial," which would be compelled testimony "is whether the government compels the individual to use the contents of his own mind to explicitly or implicitly communicate a statement of fact." Going through phone records, picking out a month and saying to the plaintiff, this is a record of a call I had with Ms. Maxwell is a communication, a selection by Mr. Epstein that the Fifth Amendment in decisions like Hubbell v. United States, discussing Greenfield, the Second Circuit recent opinion, cannot be the basis of a subpoena request. The same thing with bank records. There is no subpoena request for bank records. What there is, is all SOUMPLEUN Mabe LIMd Che PRPC) MERCED 9 ie Bs Tig (212) 805-0300